Citation Nr: 9818641
Decision Date: 06/17/98 Archive Date: 06/23/98
DOCKET NO. 95-20 937A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for postoperative
residuals of a tear injury to the left Achilles tendon,
currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. W. Koennecke
INTRODUCTION
The appellant served on active duty from April 1968 to June
1970.
This case comes before the Board of Veteran’s Appeals (the
Board) on appeal from an October 1994 rating decision of the
St. Petersburg, Florida, Department of Veterans Affairs (VA)
Regional Office (RO).
The Board’s own motion to advance this appeal on the docket
for administrative error pursuant to 38 U.S.C.A. § 7107(a)(2)
and 38 C.F.R. § 20.900(c) was granted by the Vice Chairman of
the Board in June 1997.
Preliminary review of the record does not reveal that the RO
expressly considered referral of the case to the Chief
Benefits Director or the Director, Compensation and Pension
Service for the assignment of an extraschedular rating under
38 C.F.R. § 3.321(b)(1) (1997). This regulation provides
that to accord justice in an exceptional case where the
schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Chief
Benefits Director or the Director, Compensation and Pension
Service for assignment of an extraschedular evaluation
commensurate with the average earning capacity impairment.
The governing criteria for such an award is a finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked inference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. The United States Court of Veterans Appeals
(Court) has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance, however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Director of
VA’s Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,
227 (1995). Having reviewed the record with these mandates
in mind, the Board finds no basis for further action on this
question. VAOPGCPREC. 6-96 (1996).
Service connection for right knee anterior cruciate ligament
tear with tricompartmental arthritis and degenerative joint
disease with narrowing of L4-L5 disc space on a secondary
basis was denied in a January 1997 rating decision. The
appeal of the continuance of a 20 percent evaluation for the
left Achilles injury had already been perfected. In April
1997, the appellant submitted a VA Form-9 Appeal to the
Board of Veterans Appeals in which he reiterated his intent
to appeal the claim regarding the increased rating for the
Achilles injury and disagreed with the RO’s denial of
secondary service connection for the two other claims. The
Board construes the VA Form-9 as the Notice of Disagreement
as to the secondary service connection claims. Based on the
evidence in the record, it seems that the RO has not had an
opportunity to act upon the claim. The Board refers the
issue to the RO to take appropriate action with respect to
this claim, as the Board does not have jurisdiction over
this claim. Jurisdiction does indeed matter and it is not
“harmless” when the VA during the claims adjudication
process fails to consider threshold jurisdictional issues.
Absent a statement of the case and a substantive appeal, the
Board does not have jurisdiction of the issue. Rowell v.
Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet.
App. 554 (1993), Black v. Brown, 10 Vet. App. 279 (1997).
Shockley v. West, No. 96-829 (U.S. Vet. App. May 8, 1998).
An application that is not in accord with the statute shall
not be entertained. 38 U.S.C.A. § 7108 (West 1991).
Furthermore, this Board Member cannot have jurisdiction of
this issue. 38 C.F.R. § 19.13 (1997). The veteran should
be informed of any determination by separate letter that
includes notification of appellate rights. 38 C.F.R.
§ 3.103 (1997). If there is any intent to appeal, there is
an obligation to file a substantive appeal after the
issuance of the statement of the case. 38 C.F.R. § 20.200
(1997).
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he is entitled to a higher
evaluation for the tear injury to his left Achilles tendon
because the entire posterior muscle group is hardly
noticeable due to postsurgical atrophy and he was not
properly evaluated for his lack of strength and endurance.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the appellant’s claim for an increased
disability evaluation for post-operative residuals of a tear
injury to the left Achilles tendon.
FINDING OF FACT
Post-operative residuals of a tear injury to the left
Achilles tendon is manifested by no more than moderately
severe loss of power, fatigue-pain, and atrophy of the
gastrocnemius muscle.
CONCLUSION OF LAW
Post-operative residuals of a tear injury to the left
Achilles tendon is no more than 20 percent disabling.
38 U.S.C.A. § 1155, 5107(b) (West 1991); 38 C.F.R. Part 4,
§ 4.72, Diagnostic Code 5399-5311 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant has appealed the denial of an increased rating
for postoperative residual of a tear injury to the left
Achilles tendon that is currently evaluated as 20 percent
disabling.
The claim is well grounded. 38 U.S.C.A. § 5107(a) (West
1991). This finding is based on his contentions he has
significantly increased muscle atrophy and weakness after the
second Achilles tendon surgery. Proscelle v. Derwinski, 2
Vet. App. 629 (1992).
The RO has met its duty to assist the appellant in the
development of his claim under 38 U.S.C.A. § 5107 (West
1991). Records were obtained from the VA Medical Center and
a private treating physician. Operative reports and
summaries were obtained. VA examinations were conducted in
December 1970, December 1975, and January 1996. Furthermore,
there is no indication from the appellant or his
representative that there is outstanding evidence that would
be relevant to this claim.
Disability evaluations are determined by the application of a
schedule of rating which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
Part 4 (1997). Separate diagnostic codes identify the
various disabilities. Consideration of the whole recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2 (1997);
Peyton v. Derwinski, 1 Vet. App. 282 (1991). In cases such
as this one, when an unlisted condition is encountered, it is
rated by analogy to the closest related disease or injury
which addresses not only the functions affected but the
anatomical location and symptomatology involved. 38 C.F.R.
§ 4.20 (1997).
Service connection for an old tear injury of the left
Achilles tendon was granted in a rating decision in January
1971. A 20 percent evaluation was assigned. In an October
1994 rating decision, a temporary total rating for
convalescence was assigned based on the second Achilles
tendon repair surgery in August 1993. The 20 percent
evaluation for postoperative residuals of a left Achilles
tendon tear was confirmed and continued thereafter. This
rating decision was appealed as to the continuance of the 20
percent evaluation. In August 1997, the Board remanded the
appeal due to the fact that the VA Schedule for Rating
Disabilities, 38 C.F.R. Part 4, dealing with the evaluation
of disability from muscle injuries had been changed during
the pendency of the claim. The RO was instructed to
readjudicate the claim in accordance with the new rating
criteria. The 20 percent evaluation was confirmed and
continued in a January 1998 Supplemental Statement of the
Case.
In considering the residuals of a muscle injury, it is
essential to trace the medical-industrial history of the
disabled person from the original injury, considering the
nature of the injury and the attendant circumstances, and the
requirements for, and the effect of, treatment over past
periods, and the course of the recovery to date. The
duration of the initial, and any subsequent, period of total
incapacity, especially periods reflecting delayed union,
inflammation, swelling, drainage, or operative intervention,
should be given close attention. 38 C.F.R. § 4.41 (1997)
The appellant testified at an RO hearing in November 1995.
He has atrophy in the left lower calf area. He stated that
the second surgery done on his left Achilles tendon did not
completely resolve all of the damage or scarring that was
remaining. He stated that his surgeon has indicated that
there was a high possibility that at a later date more
surgery would be required to remove scar tissue and reattach
the tendon. He has not been able to regain full strength in
the left leg since surgery. He indicated that he walked with
a noticeable limp on the left. He cannot toe walk at all.
He can heel walk some but very little. He does not have
constant pain, but the more he stays on it for any length of
time, it causes pain in the Achilles area. He has more
flexion than he should have in the left foot. When he walks,
he cannot push off the ball of his foot because he has no
strength. There is a big difference between the
circumference of the calves of each leg. He does not wear a
brace or any support. It interferes with his ability to work
since his job requires a lot of standing. He is employed as
an X-ray technician. He does not lose time at work because
of this disability since they know his condition and schedule
him to accommodate it.
The appellant is rated by analogy under Diagnostic Code 5311
for muscle injury to the foot and leg, Group XI. The Board
finds that based on the evidence, the appellant’s injury most
closely approximates a muscle injury of this location based
on the function and symptomatology that affects the use of
his left foot. This appeal is based on an October 1994
rating decision that confirmed and continued a 20 percent
evaluation. The standards for evaluating these disabilities
and applying the rating criteria for muscle injuries changed
in July 1997. The rating criteria remained the same. When a
regulation changes after a claim has been filed but before
the appeal process has been completed, the version most
favorable to the claimant will apply. Karnas v. Derwinski, 1
Vet. App. 308, 313 (1991). See 38 U.S.C.A. § 5110. Thus,
the Board will lay out both the pre-July 1997 criteria and
the post-July 1997 criterion in pertinent part for the
benefit of comparing the two.
Group XI. Function: Propulsion, plantar flexion of the foot
(1); stabilization of arch (2, 3); flexion of toes (4, 5);
flexion of knee (6).
Posterior and lateral crural muscles, and muscles of the
calf: (1) Triceps surae (gastrocnemius and soleus); (2)
tibialis posterior; (3) peroneus longus; (4) peroneus brevis;
(5) flexor hallucis longus; (6) flexor digitorum longus; (7)
popliteus; (8) plantaris.
A severe disability warrants a 30 percent evaluation. A
moderately severe disability warrants a 20 percent
evaluation. A moderate disability warrants s a 10 percent
evaluation. A slight disability warrants a 0 percent
evaluation.
For VA rating purposes, the cardinal signs and symptoms of
muscle disability are loss of power, weakness, lowered
threshold of fatigue, fatigue-pain, impairment of
coordination and uncertainty of movement. 38 C.F.R.
§ 4.56(c).
The appellant is currently rated at 20 percent for a
moderately severe disability. 38 C.F.R. § 4.56 (pre-1997) in
pertinent part:
(c) Moderately severe disability of
muscles.
Type of injury. Through and through or
deep penetrating wound by high velocity
missile of small size or large missile of
low velocity, with debridement or with
prolonged infection or with sloughing of
soft parts, intermuscular cicatrization.
History and complaint. Service
department record or other sufficient
evidence showing hospitalization for a
prolonged period in service for treatment
of wound of severe grade. Record in the
file of consistent complaint of cardinal
symptoms of muscle wounds. Evidence of
unemployability because of inability to
keep up with work requirements is to be
considered, if present.
Objective findings. Entrance and (if
present) exit scars relatively large and
so situated as to indicate track of
missile through important muscle groups.
Indications on palpation of moderate loss
of deep fascia, or moderate loss of
muscle substance or moderate loss of
normal firm resistance of muscles
compared with sound side. Tests of
strength and endurance of muscle groups
involved (compared with sound side) give
positive evidence of marked or moderately
severe loss.
(d) Severe disability of muscles.
Type of injury. Through and through or
deep penetrating wound due to high
velocity missile, or large or multiple
low velocity missiles, or explosive
effect of high velocity missile, or
shattering bone fracture with extensive
debridement or prolonged infection and
sloughing of soft parts, intermuscular
binding and cicatrization.
History and complaint. As under
moderately severe (paragraph (c) of this
section), in aggravated form.
Objective findings. Extensive ragged,
depressed, and adherent scars of skin so
situated as to indicate wide damage to
muscle groups in track of missile. X-ray
may show minute multiple scattered
foreign bodies indicating spread of
intermuscular trauma and explosive effect
of missile. Palpation shows moderate or
extensive loss of deep fascia or of
muscle substance. Soft or flabby muscles
in wound area. Muscles do not swell and
harden normally in contraction. Tests of
strength or endurance compared with the
sound side or of coordinated movements
show positive evidence of severe
impairment of function. In electrical
tests, reaction of degeneration is not
present but a diminished excitability to
faradic current compared with the sound
side may be present. Visible or measured
atrophy may or may not be present.
Adaptive contraction of opposing group of
muscles, if present, indicates severity.
Adhesion of scar to one of the long
bones, scapula, pelvic bones, sacrum or
vertebrae, with epithelial sealing over
the bone without true skin covering, in
an area where bone is normally protected
by muscle, indicates the severe type.
Atrophy of muscle groups not included in
the track of the missile, particularly of
the trapezius and serratus in wounds in
the shoulder girdle (traumatic muscular
dystrophy), and induration and atrophy of
an entire muscle following simple
piercing by a projectile (progressive
sclerosing myositis), may be included in
the severe group if there is sufficient
evidence of severe disability.
38 C.F.R. § 4.56 (post-1997) in pertinent part:
(3) Moderately severe disability of
muscles.
(i) Type of injury. Through and through
or deep penetrating wound by small high
velocity missile or large low-velocity
missile, with debridement, prolonged
infection, or sloughing of soft parts,
and intermuscular scarring.
(ii) History and complaint. Service
department record or other evidence
showing hospitalization for a prolonged
period for treatment of wound. Record of
consistent complaint of cardinal signs
and symptoms of muscle disability as
defined in paragraph (c) of this section
and, if present, evidence of inability to
keep up with work requirements.
(iii) Objective findings. Entrance
and (if present) exit scars indicating
track of missile through one or more
muscle groups. Indications on palpation
of loss of deep fascia, muscle substance,
or normal firm resistance of muscles
compared with sound side. Tests of
strength and endurance compared with
sound side demonstrate positive evidence
of impairment.
(4) Severe disability of muscles.
(i) Type of injury. Through and through
or deep penetrating wound due to high-
velocity missile, or large or multiple
low velocity missiles, or with shattering
bone fracture or open comminuted fracture
with extensive debridement, prolonged
infection, or sloughing of soft parts,
intermuscular binding and scarring.
(ii) History and complaint. Service
department record or other evidence
showing hospitalization for a prolonged
period for treatment of wound. Record of
consistent complaint of cardinal signs
and symptoms of muscle disability as
defined in paragraph (c) of this section,
worse than those shown for moderately
severe muscle injuries, and, if present,
evidence of inability to keep up with
work requirements.
(iii) Objective findings. Ragged,
depressed and adherent scars indicating
wide damage to muscle groups in missile
track. Palpation shows loss of deep
fascia or muscle substance, or soft
flabby muscles in wound area. Muscles
swell and harden abnormally in
contraction. Tests of strength,
endurance, or coordinated movements
compared with the corresponding muscles
of the uninjured side indicate severe
impairment of function. If present, the
following are also signs of severe muscle
disability:
(A) X-ray evidence of minute multiple
scattered foreign bodies indicating
intermuscular trauma and explosive effect
of the missile.
(B) Adhesion of scar to one of the long
bones, scapula, pelvic bones, sacrum or
vertebrae, with epithelial sealing over
the bone rather than true skin covering
in an area where bone is normally
protected by muscle.
(C) Diminished muscle excitability to
pulsed electrical current in
electrodiagnostic tests.
(D) Visible or measurable atrophy.
(E) Adaptive contraction of an opposing
group of muscles.
(F) Atrophy of muscle groups not in the
track of the missile, particularly of the
trapezius and serratus in wounds of the
shoulder girdle.
(G) Induration or atrophy of an entire
muscle following simple piercing by a
projectile.
Service medical records document the first complaint of pain
in the area of the Achilles tendon in January 1969. The area
was injection with lidocaine and hydrocortisone and his boot
were padded. In April 1969, the area was hot and swollen and
uncomfortable. There was a history of injuring the area
again in the shower. On examination there was moderate edema
around the Achilles tendon and a slight depression 2 inches
proximally. The diagnosis indicated a partial tear of the
Achilles tendon. His leg was casted. In January 1970, no
gap was felt in the Achilles tendon but there was swelling
about 3 inches from its insertion. Plantar flexion of the
foot was somewhat weak. Surgical repair of a torn left
Achilles tendon was performed in April 1970.
A December 1970 VA examination reported that since discharge,
the appellant was unable to do any heavy work but was
performing at his job as a dental assistant since it required
very little standing and walking. If he walked several
blocks there was pain in the ankle but no swelling. Standing
on his legs for several hours produced some pain in the
ankle. Limitation of dorsiflexion in the left ankle was noted
to about 90 degrees. Plantar flexion was about 120 degrees.
Inversion and eversion of the foot was performed normally.
There was a postoperative scar over the posterior portion of
the left ankle with considerable thickening of the Achilles
tendon over the posterior aspect of the ankle. There was no
edema of the left foot and the dorsalis pedis pulsation was
normal. He exhibited a slight limp on walking across the
room, favoring his left foot in which he did not transpose
his weight to the ball or anterior portion of the foot. No
pain was exhibited. All peripheral joints moved normally.
An old tear of the left Achilles tendon was noted with
moderate residual weakness.
On a December 1975 VA examination, he reported loss of full
dorsiflexion of the left foot and slight pain when he used
the left foot or stood for 30 minutes or longer. He
exhibited a well-healed scar on the left foot. There was
about a 10-degree loss of full dorsiflexion. The diagnosis
was residual loss of full dorsiflexion of the left foot and
pain at the site of a repaired rupture of the Achilles
tendon.
The file contains records for treatment in 1992 and 1993 by
Dr. Ochs. In January 1993 he had apparent left Achilles
bursitis with sudden pain while playing flag football. There
was no swelling or point tenderness over the tendon itself
but it seemed sensitive in the fat pad anterior to it. The
X-ray was not normal and showed a 2 mm. spur where it was
point tender on the lateral Achilles insertion. The
appellant received injections in January, April, and May 1993
with little relief. A report of a left ankle MRI in May 1993
showed gross expansion and lobularity of the Achilles tendon
with a few linear areas of increased signal consistent with
some fatty degeneration. This was said to be a fairly normal
post-repair appearance. It was otherwise unremarkable. In
June 1993 he tried using a wheelchair at work after an
injection without beneficial effect.
In July 1993 he was thought to have a soft tissue abnormality
in the left Achilles area. There was exquisite tenderness
along the area of the retrocalcaneal bursa on the lateral
side. There was a little bit of bursal type symptoms on the
true insertion of the Achilles tendon. The Achilles tendon
mass in general felt intact. He had good range of motion of
his ankle. He was otherwise neurologically intact. In
August 1993, he continued to have pain in his heel and had
minimal relief from the injection. In August 1993, he had an
open revision and repair of an Achilles tendon rupture.
There were no noted complications from surgery. He was
excused from work by doctor’s order until September 1993.
In November 1994, VA Medical Center records indicate a
complaint of limping for many months. There was atrophy of
the gastrocnemius muscle on the left with a scare over the
posterior aspect of the left heel. There was decreased
muscle strength and he could not raise his left heel as far
off the ground on toe walking as his right. The impression
was a chronic problem with his left Achilles tendon.
In 1995, Dr. Ochs noted that there was decreased calf
measurement, visible and palpable defect, a limp and an hour
glass deformity.
A January 1996 VA examination was conducted. The appellant
reported that he had continued to have symptoms after his
1993 Achilles surgery despite physical therapy. He indicated
that he had lost strength in the left leg and had some pain
but did not take anything for it. On physical examination
his carriage, posture and gait were normal. He entered the
room in no distress. He undressed and dressed with ease and
climbed on and off the table easily. He had a 6-inch well-
healed, nontender scare over the left Achilles, on the
posterior surface extending down to the heel. He could not
walk on his tiptoes or heels without falling toward the left
because of weakness in the left leg. He was able to hop 10
times on each foot and could squat and rise. He could stand
on each foot. The circumference of the calf 5 inches below
the patella on the right was 15 inches and on the left was 13
inches. The area over the left Achilles tendon was somewhat
thickened, measuring about 1 inch in width just above the
heel in the central portion of the heel. He could dorsiflex
the left ankle 32 degrees, the right 35 degrees. He could
plantar flex the left and right ankle 35 degrees. He could
invert the left foot at the ankle 28 degrees, the right 30
degrees. He could evert the left and right ankle 35 degrees.
The deep reflexes were normal. Diagnosis was status post
Achilles tendon rupture on the left with retained metallic
wires. X-ray of the left ankle revealed soft tissue density
consistent with a fine metallic wire posterior to the distal
tibia and fibula. There was also a metallic density and
irregular material projecting over the superior distal
calcaneus in two views. Collectively the metallic density
apparatus was though to be related to the previous Achilles
injury. The mortise and tibio-fibular syndesmosis were
intact. There were minimal degenerative changes at the
ankle. No calcaneal spur was seen.
A December 1996 VA examination noted a complaint of not much
strength in his left ankle in terms of plantar flexion since
his second Achilles tendon repair. On examination he was
unable to perform a single leg toe raise activity on the
left, however he had full function on the right. There was a
well-healed left ankle incisional scar. He was able to
plantarflex and dorsiflex with range of motion 30 degrees of
dorsiflexion and 45 degrees of plantar flexion. The strength
in plantar flexion was 4/5 in comparison to 5/5 on the
contralateral side. The impression indicated a primary
rupture of the Achilles tendon in 1969. He had a primary
repair with a re-rupture in 1994. This was said to be a
known complication of Achilles tendon rupture in
approximately 10-20 percent of the cases. It had produced
significant weakness in plantar flexion.
When all the evidence is assembled, the determination must
then be made as to whether the evidence supports the claim or
is in relative equipoise, with the veteran prevailing in
either event, or whether a preponderance of the evidence is
against the claim, in which case the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Comparing the pre-July 1997 criteria to the post-July 1997
criteria, the Board believes that neither one is more
favorable to the appellant than the other. The appellant ’s
disability falls within the 20 percent evaluation under both
criteria. Because the RO considered the veteran’s disability
under both criteria (although on separate occasions), a
Bernard issue is not raised by the Board’s consideration of
both criteria in this decision. Bernard v. Brown, 4 Vet.
App. 384 (1993).
Under either criteria, the preponderance of the evidence is
against a 30 percent, severe evaluation. At the time of his
initial injury in service, the appellant was initially
treated with casts and injections. The injury was diagnosed
as a partial tear of the Achilles tendon. No complications
were indicated in the surgical repair. At the time of his VA
examination in December 1970 he reported pain only after
walking several blocks and that the injury was not
interfering with his employment. There was a scar noted,
thickening of the Achilles but no edema. He exhibited only a
slight limp. The type of injury and resultant surgery did
not involve prolonged infection and sloughing of soft parts,
intermuscular binding, or cicatrization (old criteria).
There was no prolonged infection, sloughing of soft parts,
intermuscular binding. There was a postoperative scar that
was not noted to be abnormal (new criteria).
The history and complaints since the injury in service
demonstrates a moderately severe disability. Under the old
criteria, there was not an aggravated and prolonged period of
hospitalization at the time of the injury or after surgery.
Of the cardinal symptoms of muscle disability, the evidence
does not support a finding of consistent complaints of an
aggravated nature. Loss of power and weakness was not noted
until the August 1994 VA examination after the second
surgical repair. But in the January 1996 VA examination, his
carriage, posture and gait were normal. The December 1996 VA
examination noted a decrease in strength of plantar flexion
4/5 on the left as compare to 5/5 on the right. This cannot
be said to be loss of strength and power of an aggravated and
therefore severe nature. Under the new criteria, again there
is no evidence of a prolonged hospitalization for treatment
of the initial injury, or even the second surgery. Likewise,
although there have been consistent complaints of the
cardinal signs and symptoms of muscle disability since August
1993 including loss of power, weakness and fatigue-pain, it
does not rise to a level that is worse than that shown for a
moderately severe disability. A loss of strength on the left
of 4/5 as compared to 5/5 on the right cannot be said to be
severe. There is no evidence of impairment of coordination
and uncertainty of movement as the appellant has testified
that he does not have foot drop or flop, just no push-off
power when he walks. Furthermore, as to evidence of
unemployability, although the appellant has testified that he
has difficulty standing for long periods as required by his
job as an X-ray technician, he has testified that he has not
lost any time from work as a result of this disability.
There is no evidence that he is unemployed. Therefore, under
the old criteria, there is no evidence of an inability to
keep up with work requirements in an aggravated form such as
would be indicative of a severe disability. Under the new
criteria, there is no evidence of an inability to keep up
with work requirements worse than those shown for moderately
severe muscle injuries.
The objective findings of record are not indicative of a
severe disability under either criteria. Under the old or
new criteria, there is no evidence of ragged, depressed, and
adherent scars. Since the second surgery in 1993, the scar
was noted to be well healed and non-tender in the January
1996 VA examination, and well healed in December 1996. Loss
of deep fascia, muscle loss, or soft flabby muscles in the
wound area has not been shown. Prior to the second surgery,
a May 1993 MRI showed gross expansion and lobularity of the
Achilles tendon with some fatty degeneration that was said to
be a fairly normal post-repair appearance. In the January
1996 examination, the area over the left Achilles tendon was
somewhat thickened, but loss of tissue in that area has not
been reported. Tests of strength of the left leg as compared
to the right demonstrate weakness, but are not positive
evidence of a severe impairment of function (either
criteria). The August 1994 VA Medical Center records
indicate that there was decreased muscle strength and an
inability to raise the left heel as far off the ground on toe
walking as the right. The January 1996 VA examination noted
an inability to walk on his tiptoes or heels without falling
toward the left because of weakness in the left leg. In the
December 1996 VA examination, while he had full function on
the right, he was unable to perform a single leg toe raise on
the left. However, the January 1996 VA examination noted
that he was able to hop 10 times on each foot and could squat
and rise. He could stand on each foot. At the December 1996
VA examination, the strength on the left in plantar flexion
was 4/5 as compared to 5/5 on the right. These findings are
not indicative of a severe disability.
Under the old criteria, an objective finding of visible or
measured atrophy may or may not be found in a severe
disability, and atrophy of muscle groups not included in the
area of the actual injury may be included in the severe group
if there is sufficient evidence of a severe disability.
Under the new criteria, if visible or measurable atrophy is
present, it is a sign of severe muscle disability. Positive
evidence of muscle atrophy of an associated muscle group is
contained in the record. Atrophy of the gastrocnemius muscle
was noted in August 1994 VA Medical Center records. In the
January 1996 VA examination, the circumference of the calf
measured 5 inches below the patella on the right was 15
inches and 13 inches on the left. The disparity in calf size
was demonstrated and noted by the hearing officer in the
November 1995 RO hearing. Although this is positive evidence
of a severe disability under either criteria, and
specifically under the new criteria, it is outweighed by the
preponderance of the evidence against a finding of a severe
disability. Under the new criteria, no other signs of severe
muscle disability are present in the evidence. X-ray
evidence does not support the finding. There is no evidence
of adhesion of scars to a bone. Diminished muscle
excitability has not been noted, in fact in July 1993
immediately prior to the second surgery he was said to be
neurologically intact. Deep tendon reflexes were normal in
January 1996. There is no evidence of adaptive contraction
of an opposing group of muscles, atrophy of muscle groups not
associated with the injury or induration or atrophy of the
entire muscle. As has been noted previously, the remaining
evidence does not support a finding of a severe disability.
Muscle atrophy of the gastrocnemius muscle alone does not
support the claim nor does it render the assembled evidence
in equipoise so as to merit a grant of an increased rating.
The Board has specifically considered the guidance of DeLuca
v. Brown, 8 Vet. App. 202 (1995) in making its determination.
However, the Court has specifically limited the applicability
of DeLuca to limitation of motion. See, e.g., Johnson v.
Brown, 9 Vet. App. 7, 11 (1996). The evaluation of the
residuals of post-operative Achilles tendon repair is not
based upon limitation of motion and DeLuca is not applicable.
The same factors are considered in the diagnostic criteria
and thus additional compensation is not warranted.
The Board has carefully considered the appellant’s
contentions and his testimony. He is competent to describe
the observations he has made regarding the appearance of his
left leg as opposed to his right, and to describe the loss of
power, weakness and difficulty in ambulation he experiences
due to residuals of this injury. He is credible insofar as
he described and demonstrated his disability at the hearing.
However, after reviewing the entirety of the evidence, the
Board finds that while there is a definite impairment as a
result of this disability, the preponderance of the evidence
is against finding that the disability is severe. A
moderately severe disability, such as that has been granted
to this appellant, contemplates all that to which he has
testified. It contemplates hospitalization immediately after
the injury and over time. It contemplates consistent
complaints of loss of power, weakness, a lowered threshold
for fatigue, fatigue-pain, impairment of coordination and
uncertainty of movement. It contemplates a moderately severe
inability to keep up with work requirements. It contemplates
muscle atrophy. The preponderance of the evidence does not
support a finding of a severe disability, and there is no
doubt to be resolved.
Lastly, the Board believes that the disorder is correctly
rated as a muscle injury under a diagnostic code. The Board
has also cited to the regulations regarding factors to be
considered in evaluation of muscle disability, since the
regulations provide the best guidance in assigning the
correct evaluation under the particular diagnostic code.
However, it must be noted that the veteran’s disability is
not due to a gunshot wound or other trauma. It was due to an
injury without penetration. The veteran never had the “type
of injury” contemplated by the severe factors. The fact
that the veteran has atrophy does not establish that the
provisions of section 4.56 are completely applicable to the
veteran’s particular impairment. On balance, when all the
factors are considered, the impairment is no more than
moderately severe. Stated differently, although the veteran
has a sign (atrophy) of “severe” disability, he never had
the type of injury that would qualify as “severe.”
ORDER
An increased evaluation for postoperative residuals of a tear
injury to the left Achilles tendon is denied.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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